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FIRST
SECTION
CASE OF SHANIN v. RUSSIA
(Application
no. 24460/04)
JUDGMENT
STRASBOURG
27 January
2011
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Shanin v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis, President,
Nina
Vajić,
Anatoly Kovler,
Khanlar
Hajiyev,
Dean Spielmann,
Giorgio
Malinverni,
George Nicolaou, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 6 January 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 24460/04) against the Russian
Federation lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Russian national, Mr Igor Nikolayevich Shanin
(“the applicant”), on 18 May 2004.
- The
applicant was represented by Ms O. Preobrazhenskaya, a lawyer
practising in Moscow and Strasbourg. The Russian Government (“the
Government”) were represented by Ms V. Milinchuk, the then
Representative of the Russian Federation at the European Court of
Human Rights.
- On
26 November 2007 the President of the First Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 1 of the Convention).
- The
Russian Government objected to the joint examination of the
admissibility and merits of the application. Having considered the
Government's objection, the Court dismissed it.
THE FACTS
- The
applicant was born in 1970 and lives in the town of Kansk,
Krasnoyarsk Region.
A. Criminal proceedings against the applicant
- On 19 March 2001 the applicant resisted a lawful arrest
during a robbery and allegedly caused bodily harm to Mr F., officer
of the Achinsk Department of the Interior, who was passing by with
his wife. By a decision of 19 May 2001 an investigator of the
Investigations Unit of the Achinsk Department of the Interior ordered
the applicant's arrest.
- The
applicant was arrested on 10 July 2002 and brought to the Achinsk
police station (see also paragraph 13 below). It is unclear whether
any investigative measures were taken during the initial period of
his detention. On 24 July 2002 the applicant was charged with
robbery.
- On 26 July 2002 the Achinsk Town Court considered that
the applicant's arrest and detention had been unlawful because there
had been deficiencies in the arrest record, in particular because he
had not been informed of the above decision dated 19 May 2001; the
applicant had not been brought before a court within the statutory
time-limits. The applicant was released and ordered not to leave his
place of residence. On 22 August 2002 the Krasnoyarsk Regional
Court quashed the Town Court's order and ordered a re-examination of
the matter. On the same date, the applicant was charged with the
assault of officer F.
- On
3 September 2002 the applicant was served with a copy of the
indictment. On 4 September 2002 he was arrested. On 5 September
2002 the judge extended the applicant's detention and listed the case
for trial on 26 September 2002. On 28 February 2003 the trial judge
extended the applicant's detention until 4 June 2003. On 3 June 2003
the judge extended the applicant's detention until 4 September
2003 with reference to the gravity of the charges against him, his
previous criminal record and attempts to flee justice. On 15 July
2003 the Regional Court upheld that order.
- The applicant pleaded not guilty. At a court hearing
on 19 August 2003 the prosecutor dropped the charges of assault
because the case had been investigated, in breach of the Code of
Criminal Procedure, by the Department of the Interior where the
victim, officer F., was employed. By a decision issued on the same
day, the Town Court terminated the proceedings concerning the charge
of assaulting F. By a judgment of 20 August 2003, the Town Court
convicted the applicant of robbery and sentenced him to seven years'
imprisonment. On 2 December 2003 the Regional Court upheld the
aforementioned judgments.
- In
separate proceedings, by a judgment of 28 October 2005 the Town Court
recognised the applicant's right to compensation on account of the
dropped charges. However, the court refused to award compensation,
given the factual basis of the dropped and pursued charges.
- The
applicant was released in 2006.
B. Alleged ill-treatment on 10 July 2002
1. The applicant's account
- On 10 July 2002 several police officers arrived at the
applicant's flat. In the presence of his wife and child, officer B.
struck him several times on the back and insulted him and his wife.
- The applicant was then taken to the Achinsk police
station, where he was beaten up by officer F. for nearly one hour.
The officer inflicted blows to the applicant's chest, abdomen, legs
and head. Such actions were due to the animosity of the officer
toward the applicant after the events in 2001 and in order to extract
a confession for the robbery. The applicant was forced to sign
unspecified documents.
- Instead
of being placed in a standard cell, the applicant was kept alone for
ten minutes in a tiny cell. While he was examined by medical
assistant M., his former neighbour, M. refused to record any of the
injuries to his body. On the same day, he was transferred to the
remand centre. According to the applicant, the transfer did not
exceed ten minutes and was supervised by at least five convoy
officers.
- The
applicant was not brought before a court after his arrest (see
paragraph 8 above). He alleges that by failing to draw a record of
arrest and by failing to bring him before a court within the
statutory time-limits the authorities attempted to cover up the
alleged ill-treatment.
2. The Government's account
- After
his arrest on 10 July 2002, the applicant had been placed in the
temporary detention centre (of the Achinsk police station). The
bruises on his chest had been self-inflicted during his transfer from
the temporary detention centre to the remand centre.
3. Investigation into the allegation of ill-treatment
(a) Initial complaint to the authorities
- According
to a note by the temporary detention centre, the applicant had been
brought to the centre on 10 July 2002 at 5.30 pm and had had no
injuries.
- On
the same day, he was transferred to the remand centre in Achinsk. As
follows from the written report (акт
медицинского
освидетельствования)
issued by the remand centre on the same day, the applicant was
examined by a medical assistant of the remand centre, in the presence
of the on-duty senior officer and the senior convoy officer.
According to the report, the applicant displayed numerous bruises on
his chest and explained that the injuries had been sustained during
his arrest.
- On 24 July 2002 the applicant was interviewed by
investigator A. in relation to the criminal charges against him. A
lawyer was present at the interview. The applicant made the following
statement:
“I was beaten up by police officers during my
arrest on 10 July 2002. I cannot name them because they did not
introduce themselves. They hit me on the chest, abdomen and back. The
injuries were recorded in the remand centre. When brought to the
police station, I was refused access to a lawyer and was not given
any notice about my rights and the accusation against me. I had no
interview with an investigator and consider that my detention for
fourteen days was unlawful...”
- Between
26 July and 4 September 2002 the applicant was at liberty.
According to the applicant, he raised a complaint of ill-treatment at
trial hearings held on 26 and 27 September 2002. However,
the trial court refused to examine the complaint because no medical
evidence had been adduced by him.
- In
reply to the applicant's request, by letter dated 1 April 2003, the
Achinsk prosecutor's office informed him that the report of the
remand centre dated 10 July 2002 had been kept in another file
concerning the applicant. In September 2003 the applicant complained
to the Achinsk prosecutor's office that he had been beaten up by
officer F. and his colleagues.
- According
to the Government, the applicant's complaint of ill-treatment at the
hands of police officers was first raised by him at the national
level on 9 March 2003. They subsequently submitted that it had first
been raised on 22 September 2003.
(b) Investigative measures and judicial
review
- The
applicant complaint was dealt with by investigator P. of the Achinsk
prosecutor's office. The investigator interviewed officer F., who
stated that he had seen the applicant for a moment in the lobby of
the police station on 10 July 2002 but had not had any encounter with
him.
- Officers
B. and L. stated that there had not been any ill-treatment or use of
force during the applicant's arrest in his flat on that date.
- Medical
assistant M. stated that she did not remember the events, as they
dated back to 2002. Referring to the record, she affirmed, however,
that she should have examined the upper part of the applicant's body
and, as followed from the record, had detected no injuries. Nor had
the applicant aired any complaint to her.
- The
investigator also interviewed F.'s wife, who recounted the
circumstances relating to the applicant's arrest after the robbery in
March 2001.
- Later on, the applicant was also interviewed and
stated that during his arrest in the flat officer B. had inflicted
several blows to his back. In the police station, officer F. had
kicked the applicant's chest, abdomen and legs; F. had also struck
several blows to the applicant's head with his hand.
- By
a decision of 2 October 2003, the investigator refused to initiate
criminal proceedings. He stated in a summary manner that the
applicant's allegations were refuted by the above statements made by
B., F., his wife and M.
- On
24 February 2004 the prosecutor annulled the decision of 2 October
2003 and ordered further enquiries. The investigator in charge of the
complaint interviewed investigator A., who stated that she had indeed
interviewed the applicant in the presence of his lawyer and that soon
thereafter she had gone on sick leave and had transferred the case to
another official. In reply to the investigator's request, the
applicant's wife had refused to make a statement about the
circumstances of the applicant's arrest.
- By
a decision of 3 March 2004, the investigator refused to initiate
criminal proceedings for the following reasons:
“According to the medical report of 10 July 2002
issued by the temporary detention centre, the applicant had been in
good health. However, according to the medical report issued after
his transfer to the remand centre on the same date, he had displayed
bruises on his chest. There is no evidence that the applicant
sustained those injuries during his arrest.”
- On
29 March 2004 the applicant was served with a copy of the decision of
3 March 2004.
- On
23 April 2004 the prosecutor annulled the decision of 3 March 2004
and ordered an additional inquiry. The investigator then took a
statement from a Mr Sh., who had been detained with the applicant on
10 July 2002 in the temporary detention centre. Sh. stated that
the applicant had told him that he had been beaten up during the
arrest.
- It appears that the investigator asked a medical
expert Z. to examine the available documents concerning the alleged
ill-treatment. In reply to a question from the investigator, Z. made
“written explanations” (объяснение)
that when physical force was applied close to bone tissue, bruises
could either become visible immediately or within several hours. She
also replied that it was not practicable to determine the timing of
the injuries caused to the applicant because the medical report of 10
July 2002 did not contain a morphological description of the bruises,
such as details of their colour or a description of any oedema.
- By
a decision of 5 May 2004, the investigator refused to initiate
criminal proceedings because no evidence could be adduced that the
applicant had sustained injuries during the arrest. In particular,
the investigator established that the information contained in the
medical reports and the arrest record had been insufficient to
determine when the arrest had taken place and when the relevant
injuries had been sustained.
- By judgment of 4 June 2004, the Town Court annulled
the decision of 5 May 2004. The court held as follows:
“After his arrest, the applicant remained under
the control of the police or convoy officers...
Article 3 of the European Convention on Human Rights
provides that no one shall be subjected to torture...
In the Ribitsch v. Austria judgment of 4 December
1995, the European Court held that the Government should give a
plausible explanation of how the detainee's injuries have been
caused.
The case file contains no evidence rebutting the
applicant's allegations and the medical evidence or supplying any
such plausible explanation....
The European Court pointed out in the Ribitsch
judgment that any recourse to violence in respect of a person
deprived of his liberty not made strictly necessary by the conduct of
the detainees, is in principle an infringement of Article 3.
In view of the above, the decision of 5 May 2004 is
unlawful and lacks reasons explaining how the applicant's injuries
had been caused.”
- In
June 2004 the administration of the remand centre decided to transfer
the applicant to a prison, where he would serve his prison sentence.
The applicant brought proceedings claiming that his transfer would
impede the inquiry in respect of his complaint of ill-treatment. By
letter of 1 July 2004, the Town Court informed the applicant that the
above decision was not amenable to judicial review.
- The
investigator questioned a medical expert, Ms Kr., who interpreted in
her “written explanations” the location of the injuries
mentioned in the report of 10 July 2002 as meaning that the area
had been accessible to the applicant's hands and thus could have been
self-inflicted. Mr K., chief of the convoy section, stated that the
applicant had been transported to the remand centre in a convoy van,
in which detainees were not restrained and could thus inflict
injuries upon themselves. It does not appear that K. participated in
the applicant's transfer on 10 July 2002.
- By
a decision of 25 June 2004, the investigator concluded that the
applicant had inflicted the injuries on himself “with the
intention of avoiding prosecution for the criminal offence”
during his transfer from the temporary detention centre to the remand
centre.
- By
letters of 5 and 8 July 2004, the prosecutor informed the applicant
that, due to his transfer to the prison, he would not have access to
the inquiry reports and that he had already been provided with a copy
of “the decision”.
- By a judgment of 10 September 2004, the Town Court
upheld the investigator's decision of 25 June 2004. Having heard the
parties, the court considered that the investigating authority had
carried out all practicable measures during the inquiries; all
relevant testimonies and documentary evidence had been collected and
assessed. On 19 October 2004 the Regional Court upheld the Town
Court's judgment, endorsing its reasoning.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant complained that he had been ill-treated by agents of the
State on 10 July 2002 and that the investigation into the
alleged ill-treatment had not been effective in breach of Article 3
of the Convention, which reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The parties' submissions
- The
applicant submitted that had been ill-treated during his arrest in
the flat by officer B. and in the police station by officer F. He had
not inflicted any injuries upon himself during his transport to the
remand centre. The transfer had not exceeded ten minutes and had been
supervised by at least five convoy officers, who should have noticed
and prevented any attempts on the part of the detainees to inflict or
self-inflict injuries. In any event, no reports had been made of any
such incident on 10 July 2002. It would have been futile for the
applicant to have built his defence to the criminal charges on an
allegation of ill-treatment, in view of the probative value of the
statements made against him. Although the investigator and then the
trial court had been informed of the ill-treatment, no inquiry into
it had been opened. An investigation of the applicant's complaint had
started only after the medical report of 10 July 2002 had been
identified in early 2003. However, no investigative measures had been
taken between March and September 2003; no confrontation had been
held between the applicant and the police officers; and the convoy
officers had not been interviewed. The applicant had not been given
access to the inquiry file.
- The
Government argued that the bruises on the applicant's chest had been
self-inflicted during the transfer between the temporary detention
centre and the remand centre. He had made allegations of
ill-treatment during his trial. By implicating officer F., who was
one of the witnesses against him in the 2001 case (see paragraphs 6
and 10 above), the applicant had sought to avoid prosecution. The
applicant had been convicted on the basis of statements and material
evidence. There had been no need to extract a confession from him. In
any event, the allegation of ill-treatment had first been aired in
March 2003; subsequently, the Government submitted that the complaint
had been made in September 2003. In addition, the applicant's wife
had refused to make a statement about the circumstances of the
applicant's arrest on 10 July 2002. Importantly, the location of the
injuries implied that the applicant could have inflicted them by his
own hand. The national authorities had carried out an effective
investigation, the results of which had passed the muster of judicial
scrutiny.
2. The Court's assessment
(a) The alleged ill-treatment
- The Court reiterates that Article 3 of the Convention
prohibits in absolute terms torture and inhuman or degrading
treatment or punishment. In order to fall within the scope of Article
3, the ill-treatment must attain a minimum level of severity, the
assessment of which depends on all the circumstances of the case,
such as the duration of the treatment, its physical or mental effects
and, in some cases, the sex, age and state of health of the victim
(see, among others, Ireland v. the United Kingdom, judgment of
18 January 1978, § 162, Series A no. 25).
- The
Court observes at the outset that the thrust of the applicant's
complaint before the Court concerns alleged ill-treatment during his
arrest in his flat and at the hands of officer F. in the police
station on 10 July 2002. In particular, he alleged that during
his arrest in the flat officer B. had struck him several times on the
back; the police station officer F. had hit and kicked him in the
chest, abdomen, legs and head (see paragraphs 14 and 28 above). As
follows from the applicant's statement made to the investigator on
24 July 2002, during his arrest police officers, whom he could
not name, had hit him on the chest, abdomen and back (see paragraph 20
above).
- The
Government argued that the bruises on the applicant's chest had been
self-inflicted during the transfer between two detention facilities.
They also pointed out that the court at two levels of jurisdiction
upheld the findings made by the investigative authority (see
paragraph 41 above).
- First
of all, it is noted that the allegations concerning the arrest are
limited to striking the applicant on the back, which is not confirmed
by any medical evidence. Nor is there any such evidence in relation
to the alleged beatings in the abdomen, legs and head. At the same
time, it is common ground that the bruises on the applicant's chest
were sustained or self-inflicted during and/or after his arrest and
detention. Nor is it in dispute between the parties that by the time
of his arrival in the remand centre the applicant had “numerous
bruises on his chest”.
- In
the Court's view, the established injuries were sufficiently serious
to reach the “minimum level of severity” under Article 3
of the Convention. It remains to be considered whether
the State should be held responsible under Article 3 for those
injuries.
- In
assessing evidence, the Court has generally applied the standard of
proof “beyond reasonable doubt”. However, such proof may
follow from the coexistence of sufficiently strong, clear and
concordant inferences or of similar unrebutted presumptions of fact.
Where the events in issue lie wholly, or in large part, within the
exclusive knowledge of the authorities, as in the case of persons
within their control in custody, strong presumptions of fact will
arise in respect of injuries occurring during such detention. Indeed,
as rightly pointed out by the national court in the present case (see
paragraph 36 above), the burden of proof may be regarded as resting
on the authorities to provide a plausible explanation for the
injuries (see Ribitsch v. Austria, 4 December 1995, §
34, Series A no. 336).
- Where domestic proceedings have taken place, as in the
present case, it is not the Court's task to substitute its own
assessment of the facts for that of the domestic courts and, as a
general rule, it is for those courts to assess the evidence before
them (see Klaas v. Germany, 22 September 1993, § 29,
Series A no. 269). Although the Court is not bound by the
findings of domestic courts, in normal circumstances it requires
cogent elements to lead it to depart from the findings of fact
reached by those courts (see Matko v. Slovenia, no.
43393/98, § 100, 2 November 2006).
- Where allegations are made under Article 3 of the
Convention, however, the Court must apply a particularly thorough
scrutiny. The Court has emphasised that persons in custody are in a
vulnerable position and that the authorities are under a duty to
protect their physical well-being (see Tarariyeva v. Russia,
no. 4353/03, § 73, ECHR 2006-... (extracts).
In respect of a person deprived of his liberty, any recourse
to physical force which has not been made strictly necessary by his
own conduct diminishes human dignity and is in principle an
infringement of the right set forth in Article 3 of the Convention
(see Sheydayev
v. Russia, no. 65859/01, § 59, 7 December 2006;
Ribitsch, cited above, § 38; and Krastanov v.
Bulgaria, no. 50222/99, § 53, 30 September 2004).
- As
can be seen from a note compiled in the temporary detention centre,
the applicant was brought to the centre on 10 July 2002 and had
no injuries. On the same day, he was transferred to the remand
centre in the town of Achinsk. According to a report issued by the
remand centre on the same day, the applicant had displayed numerous
bruises on his chest. As follows from the report, the applicant
explained that the injuries had been sustained during his arrest.
- While
the findings of the medical report compiled in the remand centre on
the day of his arrest are not directly challenged, it should be noted
that before his release on 26 July 2002 the presence of injuries on
the applicant's body did not give rise to any forensic medical
examination by a medical expert. It appears that between 10 and 26
July 2002 the administration of the remand centre did not judge it
necessary, in particular in view of the applicant's own account of
the origin of the injuries, to order any further inquiries or more
comprehensive examinations. As was noted in the domestic proceedings,
it was not practicable on the basis of the above report to determine
the timing of the injuries because this report contained no
morphological description of the bruises, such as details of their
colour or a description of any oedema (see paragraph 34 above).
- The
Court is not convinced by the Government's argument that the injuries
had been self-inflicted. No measure was taken at the domestic level
to verify whether any reports concerning use of force against the
applicant were drawn, or whether there were any incidents during his
transport between detention facilities. No written statement was
sought from the applicant, despite a clear indication concerning use
of force.
- Moreover,
it does not appear that any depositions, including the “written
explanations” made by the medical assistant of the temporary
detention centre or medical experts, were made under oath. The Court
reiterates in that connection that it cannot hold in the abstract
that evidence given by a witness in open court and on oath should
always be relied on in preference to other statements made by the
same witness in the course of proceedings, even when the two are in
conflict (see Doorson v. the Netherlands, 26 March 1996,
§ 78, Reports 1996-II; Melnikov v. Russia,
no. 23610/03, § 75, 14 January 2010, and
Bulfinsky v. Romania, no. 28823/04, § 46, 1
June 2010). The above does not exclude that the credibility and
weight of an ordinary deposition, which is not punishable for
perjury, may be called into question in the circumstances of a given
case.
- In
view of the above considerations and bearing in mind the findings in
paragraphs 67-73 below, the Court is not satisfied that it was
convincingly established that the bruises on the applicant's chest
had been self-inflicted during the transfer in the prison van between
the temporary detention centre and the remand centre. Thus, it should
be concluded in the circumstances that the applicant was subjected to
inhuman treatment.
- There
has accordingly been a violation of Article 3 of the Convention under
its substantive aspect.
(b) The obligation to investigate
- The Court reiterates that where an individual raises
an arguable claim that he has been ill-treated by agents of the State
in breach of Article 3, that provision, read in conjunction with the
State's general duty under Article 1 of the Convention to secure to
everyone within their jurisdiction the rights and freedoms defined in
the Convention, requires by implication that there should be an
effective investigation (see, among others, Assenov and Others v.
Bulgaria, 28 October 1998, § 102, Reports of Judgments
and Decisions 1998 VIII).
- An
obligation to investigate is an obligation of means: not every
investigation should necessarily come to a conclusion which coincides
with the claimant's account of events. However, it should in
principle be capable of leading to the establishment of the facts of
the case and, if the allegations prove to be true, to the
identification and punishment of those responsible (see Paul and
Audrey Edwards v. the United Kingdom, no. 46477/99, § 71,
ECHR 2002-II, and Mahmut Kaya v. Turkey, no. 22535/93, §
124, ECHR 2000-III).
- The
investigation into “arguable” allegations of
ill-treatment must be thorough. That means that the authorities must
make a serious attempt to find out what happened and should not rely
on hasty or ill-founded conclusions to close their investigation or
as the basis for their decisions (see Assenov, cited above, §
103 et seq.). They must take all reasonable steps available to them
to secure evidence concerning the incident, including eyewitness
testimony and forensic evidence (see Tanrıkulu v. Turkey
[GC], no. 23763/94, § 104 et seq., ECHR 1999-IV; and Gül
v. Turkey, no. 22676/93, § 89, 14 December 2000). Also,
the Court has often assessed whether the authorities reacted promptly
to the complaints at the relevant time, consideration being given to
the date of commencement of investigations, delays in taking
statements and the length of time taken to complete the investigation
(see Labita v. Italy [GC], no. 26772/95, § 133
et seq., ECHR 2000 IV, and Indelicato v. Italy,
no. 31143/96, § 37, 18 October 2001). Any
deficiency in the investigation which undermines its ability to
establish the cause of injuries or the identity of the persons
responsible will risk falling foul of the applicable standard.
- Turning to the circumstances of the case, the Court
considers that the applicant's description of the alleged
ill-treatment accompanied by the medical certificate of 10 July 2002,
as well as the fact that the injuries were sustained when he was
deprived of his liberty, amounted to an “arguable” claim
of ill-treatment (compare Çevik v. Turkey (dec.), no.
57406/00, 10 October 2006). An investigation into the
applicant's allegations was thus required.
- The
parties are in disagreement as to the date on which the national
authorities were made aware of the alleged ill-treatment on 10 July
2002 and could thus be required to start an inquiry.
- The
applicant did not provide any information as to whether or not before
24 July 2002 he explicitly complained of ill-treatment and/or alleged
excessive use of force during his arrest, which would, in the normal
course of the events, prompt a preliminary inquiry on the part of the
national authorities. Be that as it may, the Court considers that
having identified some injuries on the applicant's body and having
learnt that they had been probably sustained during the arrest, it
was incumbent on the national authorities – the remand centre
in the present case – to verify that no proscribed treatment
had been inflicted on the arrestee.
- Furthermore,
the Court observes that during his interview with investigator A. on
24 July 2002 the applicant mentioned being beaten during his arrest.
While he was not able to name the responsible officers, he took care
to substantiate his allegation by reference to a medical report drawn
up in the remand centre.
- The Court further notes that, as can be seen from the
interview record, the applicant also referred to a lack of legal
advice, non-notification of his rights and that his detention in the
intervening period was unlawful, notably because he had not been
brought before a judge. In the present case the parties did not make
any particular comment on those points. Nor did they argue whether a
complaint of ill-treatment was raised by the applicant between 10 and
24 July 2002. The Court has emphasised on several occasions that
persons held in custody are often in a stressful situation and may be
vulnerable to pressure (see Belevitskiy v. Russia,
no. 72967/01, § 66, 1 March 2007, and Mammadov
v. Azerbaijan, no. 34445/04, § 74, 11 January
2007). In view of the circumstances of the applicant's detention in
July 2002, the Court is not prepared to draw any adverse inferences
against the applicant in so far as a possible delay in raising his
complaint is concerned (see, by contrast, Andreyevskiy
v. Russia, no. 1750/03, §§
55 and 56, 29 January 2009).
- Furthermore,
while it is true that as he was represented, at least on 24 July
2002, and at large after 26 July 2002, the applicant was not
restrained in his ability to raise or further substantiate a
complaint of ill-treatment, the Court considers that at latest by 24
July 2002 the national authorities were already sufficiently on
notice about the alleged unjustified use of force during the
applicant's arrest and possible ill-treatment of the applicant and
were thus required to react promptly in order to comply with the
requirements of Article 3 of the Convention.
- It
cannot be found with certainty that the applicant's right to
participate effectively in the inquiry was secured (see also Denis
Vasilyev v. Russia, no. 32704/04, § 126, 17 December
2009). He was not granted victim status in the proceedings and did
not acquire any rights attaching to that procedural status. It is
noted in that connection that in 2004 the applicant was transferred
to another detention facility and was refused access to the inquiry
file.
- It
does not appear from the available material that the ill-treatment
issue was discussed at the trial (see, by contrast, Vladimir
Romanov v. Russia, no. 41461/02, §§ 50-52, 24 July
2008; Akulinin and Babich v. Russia, no. 5742/02, §
33, 2 October 2008; Samoylov v. Russia, no. 64398/01, §§
43 and 44, 2 October 2008; Vladimir Fedorov v. Russia, no.
19223/04, §§ 44-50, 30 July 2009; Toporkov v. Russia,
no. 66688/01, §§ 28-35, 1 October 2009, and
Lopata v. Russia, no. 72250/01, § 107, 13 July
2010). In addition, it was only in April 2003 that the national
authorities took note of the applicant's requests and established
that the medical report, referred to by the applicant in July 2002,
had been placed (or misplaced) in another case file concerning him.
However, despite being in possession of the information relating to
the applicant's “numerous chest injuries”, the national
authorities did not carry out any inquiries in this regard until
September 2003.
- It is further noted that since September 2003 the
investigator questioned a number of police officers and medical
staff. However, as follows from the report issued of 10 July 2002,
the applicant was examined by the medical assistant of the remand
centre, in the presence of the on-duty senior officer and the senior
convoy officer. It does not appear that any testimony by these
persons was taken into consideration.
- In
the Court's opinion, having been confronted with conflicting versions
of the events based on either inflicted or self-inflicted injury, the
role of medical forensic evidence was particularly important to
confirm or discard either version. However, given the brevity of the
report of 10 July 2002, which resulted from a superficial visual
assessment of the applicant's medical condition upon his admission to
the remand centre, and bearing in mind the lapse of time between July
2002 and September 2003, the Court has serious doubts that any expert
forensic assessment would shed light on the circumstances in which
the applicant had sustained the injuries. In any event, such an
attempt at assessment was first made in June 2004, when a medical
expert confirmed that in the absence of any morphological description
of the injuries in the initial report it was impossible to make any
further assessment. In this context, the Court cannot afford any
weight to the Government's argument based on the fact that the
injuries were located in an area of the applicant's body which was
easily accessible to his own hands. Nor does the Government's
suggestion that the use of self-harm was a defence tactic stand up to
any scrutiny.
- In fact, there is nothing in the available material
which would either confirm or refute that the applicant's chest
injuries were caused by the applicant himself (with his own hands or,
for instance, by throwing himself against an external object) or by
another person (a police officer or another detainee). Importantly,
the national authorities did not interview any of the convoy officers
or detainees, if any, who had been present in the prison van during
the transfer from the temporary detention centre to the remand centre
on 10 July 2002. In addition, it appears that the applicant was
first questioned and his statement taken only in September 2003 at
the closure of the initial inquiry.
- The
Court concludes that the investigation in the present case did not
satisfy the requirements of Article 3 of the Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant further submitted a number of complaints relating to his
arrest, detention and trial. He referred in this respect to Articles
5, 6 and 13 of the Convention.
- The
Court has examined these complaints, as submitted by the applicant.
However, having regard to all the material in its possession, it
finds that these complaints do not disclose any appearance of a
violation of the rights and freedoms set out in the Convention or its
Protocols. It follows that this part of the application must be
rejected as being manifestly ill-founded, pursuant to Article 35 §§
3 and 4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 131,000 euros (EUR) in respect of non-pecuniary
damage.
- The
Government contested this claim.
- Having
regard to the nature of the violation found, the Court awards the
applicant EUR 12,000 in respect of non-pecuniary damage, plus any tax
that may be chargeable to the applicant.
B. Costs and expenses
- Since
the applicant made no claim under this head, the Court is not called
to make any award.
C. Default interest
- The
Court considers it appropriate that default interest should be based
on the marginal lending rate of the European Central Bank, to which
should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning ill-treatment
and ineffective investigation admissible and the remainder of the
application inadmissible;
- Holds that there has been a violation of Article
3 of the Convention under its substantive aspect;
- Holds that there has been a violation of Article
3 of the Convention under its procedural aspect;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 12,000
(twelve thousand euros), plus any tax that may be chargeable to the
applicant, in respect of non-pecuniary damage, to be converted into
Russian roubles at the rate applicable at the date of settlement;
(b) that,
from the expiry of the above-mentioned three months until settlement,
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 27 January 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis Registrar President
